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October 2012 – Update

Educate on policies & investigate competently

In two recent decisions of Fair Work Australia, employers are being reminded that they will be rewarded for having solid workplace policies that they can prove their employees knew and understood.

When Ms Anning was terminated from Virgin (Mary-Lou Anning v Virgin Australia Airlines Pty Ltd – U2012/5538) she denied the allegations that she was guilty of bullying behaviour towards her staff and claimed that the investigation conducted by managers was flawed. Virgin was however able to prove on the balance of probability that the Applicant engaged in bad behaviour which breached the company’s “No Tolerance to Bullying”, “Code of Conduct” and “Keeping our Workplace Fair” policies. Further, Virgin was able to show that the manager underwent detailed training in this regard which stood them in good stead before the Tribunal.

Similarly, Powerlink was able to successfully defend their termination of Mr Pogadaev (Pogadaev v Queensland Electricity Transmission Corporation T/A Powerlink Queensland – U2012/6104) when he failed on four occasions to present for medical appointments which the company deemed to be a lawful and reasonable direction. The contract of employment stated that the employee must be ‘familiar with and comply with Powerlink’s policies, procedures and guidelines’ however the Applicant argued that his inability to attend work after a Christmas party complaint was being investigated did not fall within the scope of the company’s rehabilitation policy which they sought to rely upon. Further, the Applicant claimed that management had decided to terminate his employment in a meeting prior to directing him to seek medical clearance from the company’s doctor. Whilst the Tribunal was silent on whether or not the policy did apply, it was the Applicant’s ignorance of the company’s communication led to his ultimate demise.

In both cases, the Applicants argued that the investigation process, which was conducted by internal management, as flawed. Regardless of whether this was the case or not, conflict between the parties could have been minimised or avoided if the investigation was outsourced to an independent party.

For assistance in drafting employment documents including policies, staff training or conducting a workplace investigation, contact Nicole or John at Industrial Relations Law.